PART THIRD. INTERNATIONAL RIGHTS OF STATES IN THEIR CHAPTER I. RIGHTS OF LEGATION. § 1. Usage nent diplo sions. THERE is no circumstance which marks more distinctly the progress of modern civilization, than the of permainstitution of permanent diplomatic missions between matic misdifferent States. The rights of ambassadors were known, and, in some degree, respected by the classic nations of antiquity. During the middle ages they were less distinctly recognized, and it was not until the seventeenth century that they were firmly established. The institution of resident permanent legations at all the European courts took place subsequently to the peace of Westphalia, and was rendered expedient by the increasing interest of the different States in each other's affairs, growing out of more extensive commercial and political relations, and more refined speculations respecting the balance of power, giving them the right of mutual inspection as to all transactions by which that balance might be affected. Hence the rights of legation have become definitely ascertained and incorporated into the international code. to send, and Every independent State has a right to send public 2. Right ministers to, and receive ministers from, any other sove- obligation reign State with which it desires to maintain the rela- to receive, public mintions of peace and amity. No State, strictly speaking, isters. is obliged, by the positive law of nations, to send or receive public ministers, although the usage and comity of nations seem to have established a sort of reciprocal duty in this respect. It is evident, however, that this cannot be more than an imperfect obligation, and must be modified by the nature and importance of the relations to be maintained between different States by means of diplomatic intercourse.1 § 3. Rights of legation, to what States belonging. How far the rights of legation belong to dependent or semi-sovereign States, must depend upon the nature of their peculiar relation to the superior State under whose protection they are placed. Thus, by the treaty concluded at Kainardgi, in 1774, between Russia and the Porte, the provinces of Moldavia and Wallachia, placed under the protection of the former power, have the right of sending chargés d'affaires of the Greek communion to represent them at the court of Constantinople.2 (a) So also of confederated States; their right of sending public ministers to each other, or to foreign States, depends upon the peculiar nature and constitution of the union by which they are 1 Vattel, Droit des Gens, liv. iv. ch. 5, §§ 55-65. Rutherforth's Institutes, vol. ii. b. ii. ch. 9, 20. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. vii. ch. 1, §§ 187-190. Vattel, liv. iv. ch. 5, § 60. Klüber, Droit des Gens Moderne de l'Europe, st. 2, tit. 2, ch. 3, § 175. Merlin, Répertoire, tit. Ministre publique, sect. ii. § 1. No. 3, 4. (a) [Les chargés d'affaires de Moldavie et de Valachie près de la Porte Ottomane, dont parle le traité de Kainardgy, ne sont pas proprement des agens diplomatiques, ni ne résident avec le corps diplomatique accrédité auprès de la Porte. Dès long temps les Pachas et Gouverneurs des Provinces Ottomanes étoient dans l'habitude d'entretenir auprès de l'Administration Centrale, c'est à dire, auprès de la Porte, des agens appellés Kayson Kehagasi, (littéralement agens auprès de la Porte): servant d'intermédiaires entre cette administration et leur commettans. Comme les Hospodars de la Moldavie et de la Valachie, à l'époque de la paix de Kainardgy, trahissoient régulièrement le Sultan dans toute crise politique un peu sérieuse, et qu'alors la Porte s'en prenoit volontiers aux Kayson Kehagasi des Hospodars, d'ordinaire les confidens de ceux-ci lesquels se rétiroient au besoin en pays étranger, la stipulation en question du traité de Kainardgy n'eut proprement pour l'objet que de conserver, en pareil cas, la vie sauve au Phanariote chargé des fonctions de Kayson Kehagasi. Kupfer's Remarks on the "Elements of International Law." Wheaton's MS. Papers.] bound together. Under the constitution of the former German Empire, and that of the present Germanic Confederation, this right ⚫ is preserved to all the princes and States composing the federal union. Such was also the former Constitution of the United Provinces of the Low Countries, and such is now that of the Swiss Confederation. By the Constitution of the United States of America every State is expressly forbidden from entering, without the consent of Congress, into any treaty, alliance, or confederation, with any other State of the Union, or with a foreign State, or from entering, without the same consent, into any agreement or compact with another State, or with a foreign power. The original power of sending and receiving public ministers is essentially modified, if it be not entirely taken away, by this prohibition.' civil war or the sove The question, to what department of the government § 4. How belongs the right of sending and receiving public minis- affected by ters, also depends upon the municipal constitution of contest for the State. In monarchies, whether absolute or consti- reignty. tutional, this prerogative usually resides in the sovereign. In republics, it is vested either in the chief magistrate, or in a senate or council, conjointly with, or exclusive of such magistrate. In the case of a revolution, civil war, or other contest for the sovereignty, although, strictly speaking, the nation has the exclusive right of determining in whom the legitimate authority of the country resides, yet foreign States must of necessity judge for themselves whether they will recognize the government de facto, by sending to, and receiving ambassadors from it; or whether they will continue their accustomed diplomatic relations with the prince whom they choose to regard as the legitimate sovereign, or suspend altogether these relations with the nation in question. So, also, where an empire is severed by the revolt of a province or colony declaring and maintaining its independence, foreign States are governed by expediency in determining whether they will commence diplomatic intercourse with the new State, or wait for its recognition by the metropolitan country.2 1 Heffter, das Europäische Völkerrecht, § 200. Merlin, Répertoire, tit. Ministre publique, sect. ii. § 1, No. 5. 2 Vide suprà, Pt. I. ch. 2, §§ 7-10, pp. 31-34. Merlin, Répertoire, tit. Ministre publique, sect. ii. § 6. For the purpose of avoiding the difficulties which might arise from a formal and positive decision of these questions, diplomatic agents are frequently substituted, who are clothed with the powers, and enjoy the immunities of ministers, though they are not invested with the representative character, nor entitled to diplomatic honors. (a) § 5. Con ditional re ception of foreign ministers. As no State is under a perfect obligation to receive ministers from another, it may annex such conditions to their reception as it thinks fit; but when once received, they are, in all other respects, entitled to the privileges annexed by the law of nations to their public character. Thus some governments have established it as a rule not to receive one of their own native subjects as a minister from a foreign power; and a government may receive one of its own subjects, under the expressed condition that he shall continue amenable to the local laws and jurisdiction. So, also, one court may absolutely refuse to receive a particular individual as minister from another court, alleging the motives on which such refusal is grounded.1 (a) [In the case of the last change in the Constitution of France, by the clevation of the Emperor Napoleon III. the following instructions were sent, by the Secretary of State to the Minister at Paris. From President Washington's time down to the present it has been a principle, always acknowledged by the United States, that every nation possesses a right to govern itself according to its own will, to change its institutions at discretion, and to transact its business through whatever agents it may think proper to employ. This cardinal point in our own policy has been strongly illustrated by recognizing the many forms of political power, which have been successively adopted by France in the series of revolutions, with which that country has been visited. Throughout all these changes the government of the United States has governed itself in strict conformity to the original principles adopted by Washington, and made known to our diplomatic agents abroad, and to the nations of the world by Mr. Jefferson's letter to Gouverneur Morris, of the 12th of March, 1793: and if the French people have now, substantially, made another change, we have no choice but to acknowledge that also, and as the diplomatic representative of your country in France, you will act as your predecessors have acted and conform to what appears to be settled national authority." Mr. Webster to Mr. Rives, Cong. Doc. 1851-2. Vol. 4, Doc. 19.] 1 Bynkershoek, de Foro Competent. Legatorum, cap. 11, § 10. Martens, Manuel Diplomatique, ch. 1, § 6. Merlin, Répertoire, tit. Ministre publique, sect. iii. § 5. |